Reflections on an Australian Aboriginal Treaty 1986–2006

What Good Condition? What Good Condition? Reflections on an Australian Aboriginal Treaty 1986–2006 Aboriginal History Monograph 13 Edited by Peter Read, Gary Meyers and Bob Reece �� (pbk)�� Aufidius: The town is ta’en! First Soldier: ‘Twill be deliver’d back on good condition. Aufidius: Condition!... What good condition can a treaty find I’ the part that is at mercy? Shakespeare, Coriolanus I.IO Contents Peter Read What good condition? ix Larissa Behrendt Foreword xi Steven Churches Put not your faith in princes (or courts) – agreements 1 made from asymmetrical power bases: the story of a promise made to Western Australia’s Aboriginal people Ravi de Costa National encounters between Indigenous and 15 settler peoples: some Canadian lessons Peter Read Doubts about the treaty 31 William Jonas Reflections on the history of Indigenous people’s 41 struggle for human rights in Australia – what role could a treaty play? Roderic Pitty The political aspects of creating a treaty 51 Tim Rowse From enforceability to feel-good: notes on the 71 prehistory of the recent treaty debate Sue Stanton The challenge for Australia: reconciling the treaty 89 Eddie Mabo Jnr A treaty for whom? 99 Michael Dodson What is a treaty? 105 The Hon David Malcolm AC Treaty: advancing reconciliation? 123 Garth Nettheim International Human Rights: bases for Indigenous rights 135 Stephen W Robson Consent: common law and native title 157 The Hon Justice Michael Barker ‘Treaty’: what’s in a name? 163 The Hon Justice Ralph Simmonds Customary Law and treaty 171 Lisa Strelein Missed meanings: the language of sovereignty 177 in the treaty debate Greg McConville Regional agreements, higher education and 191 representations of Indigenous Australian reality Greg McIntyre Native title holding communities as treaty parties 207 Richard Ah Mat The Cape York view 221 The Coolangatta Statement on Indigenous 229 peoples’ Rights in Education Biographical notes 237 What Good Condition? Peter Read ix Aufidius, the enemy of Rome, asks what use a treaty could possibly be to those at the mercy of the Roman oppressor. Such a sentiment may seem a pessimistic way to begin a monograph on the proposal for a treaty between Aboriginal and non- Aboriginal Australians, a proposal which has been discussed and dissected for nearly thirty years. But such a sentiment broadly reflects the feelings of many of the writers in the volume, particularly the Indigenous writers. It is not so much that everyone has lost hope, but expectations are lower, hopes are diminished. Perhaps a negotiated settlement may come about – but it won’t be called a treaty. Perhaps ratified agreements may occur – but they won’t be national agreements. Perhaps there may be a practical settlement – but it won’t follow the principles of international law. These papers in raw form were delivered at a conference held at Murdoch University in 2002. Later they were rewritten, expanded and updated to account for changing conditions within Indigenous Australia. Since then the Aboriginal and Torres Strait Islander Commission has been abolished. The Council for Aboriginal Reconciliation has served out its term. The papers are arranged in three parts. In the first, authors consider the context and legacy of the residue of treaty proposals and negotiations in past decades. In the second they consider the implications of treaty in an Indigenous, national and international context. The third section concerns some reflections on regional aspirations and achievements. These indeed may be the way forward. For this production I warmly thank the originators of the conference Treaty Advancing Reconciliation, my fellow editors Gary Meyers and Bob Reece, and the monograph production team of the journal Aboriginal History. I particularly acknowledge the National Centre for Indigenous Studies, and the History Program, Research School of Social Sciences, Australian National University, for their continuing financial support of the journal. A generous subsidy by the Aboriginal and Torres Strait Islander Commission in its final weeks of corporate life made the production of this monograph possible. Foreword Larissa Behrendt x A treaty between Indigenous and non-Indigenous Australians has been a continuing

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